[Federal Register Volume 73, Number 244 (Thursday, December 18, 2008)]
[Rules and Regulations]
[Pages 76948-76960]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-30003]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 302 and 355

[EPA-HQ-SFUND-2007-0469; FRL-8753-9]
RIN 2050-AG37


CERCLA/EPCRA Administrative Reporting Exemption for Air Releases 
of Hazardous Substances From Animal Waste at Farms

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: This final rule provides an administrative reporting exemption 
from particular notification requirements under the Comprehensive 
Environmental Response, Compensation, and Liability Act of 1980, as 
amended. In addition, this final rule provides a limited administrative 
reporting exemption in certain cases from requirements under the 
Emergency Planning and Community Right-to-Know Act, also known as Title 
III of the Superfund Amendments and Reauthorization Act. Specifically, 
the administrative reporting exemption applies to releases of hazardous 
substances to the air that meet or exceed their reportable quantity 
where the source of those hazardous substances is animal waste at 
farms.
    Nothing in this final rule changes the notification requirements if 
hazardous substances are released to the air from any source other than 
animal waste at farms (e.g., ammonia tanks), or if any hazardous 
substances from animal waste are released to any other environmental 
media, (e.g., soil, ground water, or surface water) when the release of 
those hazardous substances is at or above its reportable quantity. 
Also, the administrative reporting exemption under section 103 of the 
Comprehensive Environmental Response, Compensation, and Liability Act, 
does not limit any of the Agency's other authorities under the 
Comprehensive Environmental Response, Compensation, and Liability Act 
sections 104 (response authorities), 106 (abatement actions), 107 
(liability), or any other provisions of the Comprehensive Emergency 
Response, Compensation, and Liability Act or the

[[Page 76949]]

Emergency Planning and Community Right to Know Act.
    Accordingly, EPA believes this administrative reporting exemption 
not only leaves in place important Agency response authorities that can 
be used to protect human health and the environment if needed, but also 
is consistent with the Agency's goal to reduce reporting burden, 
particularly considering that Federal, State or local response 
officials are unlikely to respond to notifications of air releases of 
hazardous substances from animal waste at farms.

DATES: This final rule is effective on January 20, 2009.

ADDRESSES: EPA has established a docket for this action under Docket ID 
No. [EPA-HQ-SFUND-2007-0469]. All documents in the docket are listed on 
the www.regulations.gov Web site. Although listed in the index, some 
information is not publicly available, e.g., Confidential Business 
Information (CBI) or other information whose disclosure is restricted 
by statute. Certain other material, such as copyrighted material, is 
not placed on the Internet and will be publicly available only in hard 
copy form. Publicly available docket materials are available either 
electronically through www.regulations.gov or in hard copy at the 
Superfund Docket, EPA/DC, EPA West, Room 3334, 1301 Constitution Ave., 
NW., Washington, DC. The Public Reading Room is open from 8:30 a.m. to 
4:30 p.m., Monday through Friday, excluding legal holidays. The 
telephone number for the Public Reading Room is (202) 566-1744, and the 
telephone number for the Superfund Docket is (202) 566-0276.

FOR FURTHER INFORMATION CONTACT: Lynn Beasley, Regulation and Policy 
Development Division, Office of Emergency Management (5104A), 
Environmental Protection Agency, 1200 Pennsylvania Ave., NW., 
Washington, DC 20460; telephone number: (202) 564-1965; fax number: 
(202) 564-2625; e-mail address: [email protected].

SUPPLEMENTARY INFORMATION: The contents of this preamble are listed in 
the following outline:

I. General Information
    A. Does This Action Apply to Me?
    B. What Is the Statutory Authority for This Rulemaking?
    C. Which Hazardous Substances Are We Exempting From the 
Notification Requirements of CERCLA and EPCRA?
II. Background
III. Summary of This Action
    A. What is the Scope of This Final Rule?
    B. How Does This Rule Differ From the Proposed Rule?
    i. Exemption From CERCLA Section 103 Reporting
    ii. Thresholds for Exemption From EPCRA Section 304 Reporting
    iii. Continuous Release Reporting
    C. Definitions
    i. Animal Waste
    ii. Farm
    D. What Is Not Included Within the Scope of This Rule?
    E. What Is EPA's Rationale for This Administrative Reporting 
Exemption?
    F. What Are the Economic Impacts of This Administrative 
Reporting Exemption?
    G. Response to Comments
    i. Comments Regarding Elimination of Reporting Requirement
    ii. Comments Regarding Risk, Harm, and Exposure
    iii. Comments Regarding the Agency's Statutory Authority to 
Issue This Rulemaking
    iv. Comments Indicating a Misunderstanding of the Proposed Rule
    v. Comments Regarding Definitions
    (1) Animal Waste
    (2) Farm
    vi. Comments Regarding Other Facilities
    vii. Comments Regarding Possible Situations That Would 
Necessitate a Response
IV. Statutory and Regulatory Reviews
    A. Executive Order 12866 (Regulatory Planning and Review)
    B. Paperwork Reduction Act
    C. Regulatory Flexibility Act
    D. Unfunded Mandates Reform Act
    E. Executive Order 13132 (Federalism)
    F. Executive Order 13175 (Consultation and Coordination With 
Indian Tribal Governments)
    G. Executive Order 13045 (Protection of Children From 
Environmental Health & Safety Risks)
    H. Executive Order 13211 (Actions That Significantly Affect 
Energy Supply, Distribution, or Use)
    I. National Technology Transfer Advancement Act
    J. Executive Order 12898 (Federal Actions To Address 
Environmental Justice in Minority Populations and Low-Income 
Populations)
    K. Congressional Review Act

I. General Information

A. Does This Action Apply to Me?

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        Type of entity               Examples of affected entities
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Industry.....................  NAICS Code 111--Crop Production.
                               NAICS Code 112--Animal Production.
State and/or Local             State Emergency Response Commissions, and
 Governments.                   Local Emergency Planning Committees.
Federal Government...........  National Response Center.
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    This table is not intended to be exhaustive, but rather provides a 
guide for readers regarding entities likely to be affected by this 
action. This table lists the types of entities that EPA is currently 
aware could potentially be affected by this action; however, other 
types of entities not listed in the table could also be affected. To 
determine whether your facility is affected by this action, you should 
carefully examine the criteria in section III.A of this final rule and 
the applicability criteria in Sec.  302.6 of title 40 of the Code of 
Federal Regulations (CFR) and 40 CFR Part 355, Subpart C-Emergency 
Release Notification.\1\ If you have questions regarding the 
applicability of this action to a particular entity, consult the person 
listed in the preceding FOR FURTHER INFORMATION CONTACT section.
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    \1\ On November 3, 2008, EPA published a final rule, ``Emergency 
Planning and Community Right-to-Know Act; Amendments to Emergency 
Planning and Notification; Emergency Release Notification and 
Hazardous Chemical Reporting'' (``EPCRA rule''). (See 73 FR 65452.) 
That rule included revisions to the Emergency Planning Notification, 
Emergency Release Notification and Hazardous Chemical Reporting 
regulations. One of the revisions included reorganizing the Code of 
Federal Regulations (CFR) so that it follows a plain language 
format. This final rule uses the CFR citations of the EPCRA rule.
    Subpart C--Emergency Release Notification includes regulations 
for, ``Who Must Comply'' (355.30--What facilities must comply with 
the emergency release notification requirements? 355.31--What types 
of releases are exempt from the emergency release notification 
requirements of this subpart?, 355.32--Which emergency release 
notification requirements apply to continuous releases?, and 
355.33--What release quantities of EHSs and CERCLA hazardous 
substances trigger the emergency release notification requirements 
of this subpart?) ``How to Comply'' (355.40--What information must I 
provide?, 355.41--In what format should the information be 
submitted?, 355.42--To Whom Must I Submit the Information?, and 
355.43--When Must I Submit the Information?).
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B. What Is the Statutory Authority for This Rulemaking?

    Section 104 of the Comprehensive Environmental Response, 
Compensation, and Liability Act of 1980 (CERCLA), 42 U.S.C. 9601 et 
seq., as amended by the Superfund Amendments and Reauthorization Act 
(SARA) of 1986, gives the Federal government broad authority to respond

[[Page 76950]]

to releases or threats of releases of hazardous substances from vessels 
and facilities. The term hazardous substance is defined in section 
101(14) of CERCLA primarily by reference to other Federal environmental 
statutes. Section 102 of CERCLA gives the Environmental Protection 
Agency (EPA or the Agency) authority to designate additional hazardous 
substances. Currently, there are approximately 760 CERCLA hazardous 
substances, exclusive of Radionuclides, F-, K-, and Unlisted 
Characteristic Hazardous Wastes.
    CERCLA section 103(a) calls for immediate notification to the 
National Response Center (NRC) when the person in charge of a facility 
has knowledge of a release of a hazardous substance equal to or greater 
than the reportable quantity (RQ) established by EPA for that 
substance. In addition to the notification requirements established 
pursuant to CERCLA section 103, section 304 of the Emergency Planning 
and Community Right-to-Know Act of 1986 (EPCRA), 42 U.S.C. 11001 et 
seq., requires the owner or operator of certain facilities to 
immediately report to State and local authorities releases of CERCLA 
hazardous substances or any extremely hazardous substances (EHSs) if 
they exceed their RQ (see 40 CFR 355.33). This final rule only applies 
to CERCLA section 103 notification requirements, including the 
provisions that allow for continuous release reporting found in 
paragraph (f)(2) of CERCLA section 103, and EPCRA section 304 
notification requirements.
    The Agency has previously granted such administrative reporting 
exemptions (AREs) under the CERCLA section 103 and EPCRA section 304 
notification requirements where the Agency has determined that a 
Federal response to such a release is impracticable or unlikely. For 
example, on March 19, 1998, the Agency issued a final rule (see 63 FR 
13459) that granted exemptions for releases of naturally occurring 
radionuclides. The rule, entitled Administrative Reporting Exemptions 
for Certain Radionuclide Releases (``Radionuclide ARE''), granted 
exemptions for releases of hazardous substances that pose little or no 
risk or to which a Federal response is infeasible or inappropriate (see 
63 FR 13461).
    The Agency relies on CERCLA sections 102(a), 103, and 115 (the 
general rulemaking authority under CERCLA) as authority to issue 
regulations governing section 103 notification requirements. The Agency 
relies on EPCRA section 304 as authority to issue regulations governing 
EPCRA section 304 notification requirements, and EPCRA section 328 for 
general rulemaking authority. The Agency will continue to require 
certain reports under EPCRA section 304, specifically for those 
facilities that meet the size thresholds in 40 CFR 355.31(g) and 
outlined below in section III.B.ii of this preamble.

C. Which Hazardous Substances Are We Exempting From the Notification 
Requirements of CERCLA and EPCRA?

    EPA is exempting certain releases of hazardous substances to the 
air from the notification requirements of CERCLA and to a limited 
extent EPCRA emergency notifications, as implemented in 40 CFR 302.6 
and 40 CFR Part 355, Subpart C-Emergency Notification Requirement, 
respectively. Specifically, we are exempting those hazardous substance 
releases that are emitted to the air from animal waste at farms. The 
exemption to the CERCLA section 103 notification requirements will 
apply to all releases of hazardous substances to the air from animal 
waste at farms. However, to respond to comments expressing the desire 
to receive information regarding releases from large concentrated 
animal feeding operations (CAFOs), EPA is bifurcating these 
administrative reporting exemptions in order to continue to require 
EPCRA section 304 emergency notifications for those CAFO operations 
that confine the large CAFO threshold of an animal species or above, as 
defined in the National Pollutant Discharge Elimination System (NPDES) 
program regulations. As such, the exemption to EPCRA section 304 
emergency notification requirements will apply to air releases of 
hazardous substances from animal waste at farms that are below the 
thresholds in 40 CFR 355.31(g) and for those farms that have animals 
that are not stabled or confined. (See 40 CFR 355.31(h)) For the 
purposes of this rule, EPA considers animals (i.e., cattle) that reside 
primarily outside of an enclosed structure (i.e., a barn or a feed lot) 
and graze on pastures, not to be stabled or confined, and thus are 
exempted from the reporting requirements under EPCRA Section 304.
    Section 324 of EPCRA requires that the follow-up emergency notice 
shall be made available to the general public; thus emergency 
notifications filed under EPCRA section 304 will be available to the 
public. Farms that are required to report their releases under EPCRA 
section 304 emergency notifications may continue to use continuous 
release reporting as described in 40 CFR 355.32.
    Ammonia and hydrogen sulfide are the most recognized hazardous 
substances that are emitted from animal waste. Specifically, ammonia is 
a by-product of the breakdown of urea and proteins that are contained 
in animal waste, while hydrogen sulfide is another by-product of the 
breakdown of animal waste under anaerobic conditions. However, other 
hazardous substances, such as nitrogen oxide (NO) and certain volatile 
organic compounds (VOCs) may also be released from animal waste. This 
rule extends the administrative reporting exemption to all hazardous 
substances emitted to the air from animal waste at farms.
    These hazardous substances can be emitted when animal waste is 
contained in a lagoon or stored in under-floor manure pits in some 
animal housing, manure stockpiles, or where animals are stabled or 
confined.

II. Background

    Under CERCLA section 103(a), the person in charge of a vessel or 
facility from which a CERCLA hazardous substance has been released into 
the environment in a quantity that equals or exceeds its RQ must 
immediately notify the NRC of the release. A release is reportable if 
an RQ or more is released into the environment within a 24-hour period 
(see 40 CFR 302.6). This reporting requirement serves as a trigger for 
informing the Federal government of a release so that Federal personnel 
can evaluate the need for a response in accordance with the National 
Contingency Plan (NCP) and undertake any necessary response action in a 
timely fashion.
    The NRC is located at the United States Coast Guard (USCG) 
headquarters and is the national communications center for the receipt 
of all pollution incidents reporting. The NRC is continuously staffed 
for processing activities related to receipt of the notifications. The 
NCP regulations, 40 CFR 300.125, require that notifications of 
discharges and releases be made by telephone and state that the NRC 
will immediately relay telephone notices of discharges or releases to 
the appropriate predesignated Federal on-scene coordinator (OSC). The 
NRC receives an average of approximately 34,000 notifications of 
releases or discharges per year, 99 percent of which are relayed to 
EPA.
    Under EPCRA section 304(a), three release scenarios require 
notification.
     First, if a release of an extremely hazardous substance 
occurs from a facility at which a hazardous chemical is produced, used, 
or stored, and such release requires a notification under section 
103(a) of CERCLA, the owner or operator of a facility shall immediately 
provide notice to the community emergency coordinator for the local

[[Page 76951]]

emergency planning committees (LEPC) for any area likely to be affected 
by the release and to the State emergency response commission (SERC) of 
any State likely to be affected by the release. (EPCRA section 
304(a)(1))
     EPCRA section 304(a) also requires the owner or operator 
of the facility to immediately provide notice under EPCRA section 
304(b) for either of the following two scenarios:
    [cir] If the release is an extremely hazardous substance, but not 
subject to the notifications under section 103(a) of CERCLA. (EPCRA 
section 304(a)(2))
    [cir] If the release is not an extremely hazardous substance and 
only subject to the notifications under section 103(a) of CERCLA. 
(EPCRA section 304(a)(3))
    EPCRA notification is to be given to the community emergency 
coordinator for each LEPC for any area likely to be affected by the 
release, and the SERC of any state likely to be affected by the 
release. Through this notification, state and local officials can 
assess whether a response action to the release is appropriate. EPCRA 
section 304 notification requirements apply only to releases that have 
the potential for off-site exposure and that are from facilities that 
produce, use, or store a ``hazardous chemical,'' as defined by 
regulations promulgated under the Occupational Safety and Health Act of 
1970 (OSHA) (29 CFR 1910.1200(c)) and by section 311 of EPCRA.
    Owners and operators of farms, like all other facilities, are 
required to report the release of hazardous substances into the 
environment in accordance with CERCLA section 103 and EPCRA section 304 
when it meets or exceeds the RQ of the hazardous substance. For 
example, releases into the environment of ammonia or any other 
hazardous substance, from tanks located on a farm, at or above an RQ 
are required to be reported under CERCLA section 103 and EPCRA section 
304.
    In 2005, EPA received a petition (poultry petition) from the 
National Chicken Council, National Turkey Federation, and U.S. Poultry 
& Egg Association, seeking an exemption from the CERCLA and EPCRA 
reporting requirements for ammonia emissions from poultry operations. 
The Agency published a notice in the Federal Register on December 27, 
2005 (70 FR 76452), that acknowledged receipt of the poultry petition 
and requested public comment. The comment period closed on March 27, 
2006. This final rule does not address that petition. EPA will respond 
to the petition in a separate action.
    Also, in 2005, EPA offered the owners and operators of animal 
agricultural operations an opportunity to participate in the National 
Air Emissions Monitoring Study (air monitoring study), that is being 
conducted by an independent, non-profit organization and overseen by 
EPA, through a consent agreement with the Agency. The purpose of the 
air monitoring study is to develop emissions estimating methodologies 
for all animal agricultural operations. Over 2,600 animal feeding 
operations, representing over 14,000 farms, signed up to participate in 
the study. The monitoring study, which began in the spring of 2007 
includes 25 representative sites (lagoons or barns) on 21 different 
farms in ten states (NC, NY, IA, WI, CA, KY, TX, WA, IN, and OK). The 
sites will be monitored for a period of two years, allowing the Agency 
to account for emissions variability by season, and for the effect of 
any seasonal operational changes (such as pumping out lagoons), that 
could have an effect on emission levels.
    The consent agreement also requires that within 120 days after 
receiving an executed copy of the consent agreement, for any farm that 
confines more than ten times the large CAFO threshold of animal 
species, as defined in the NPDES program regulations, the animal 
feeding operation provide to the NRC and to the relevant State and 
local emergency response authorities written notice describing its 
location and stating substantially as follows:

    ``This operation raises [species] and may generate routine air 
emissions of ammonia in excess of the reportable quantity of 100 
pounds per 24 hours. A rough estimate of those emissions is [ ] 
pounds per 24 hours, but this estimate could be substantially above 
or below the actual emission rate, which is being determined through 
an ongoing monitoring study in cooperation with the U.S. 
Environmental Protection Agency. When that emission rate has been 
determined by this study, we will notify you of any reportable 
releases pursuant to CERCLA section 103 or EPCRA section 304. In the 
interim, further information can be obtained by contacting [insert 
contact information for a person in charge of the operation].''

The requirement that these very large animal feeding operations (AFOs) 
immediately report estimated releases of ammonia was solely for the 
purposes of the air compliance agreement and not for purposes of 
reporting under CERCLA or EPCRA. (See 70 FR 4958, Jan. 31, 2005.)
    At the end of the monitoring study, EPA will use the data along 
with other relevant available data to develop emissions estimating 
methodologies. The monitoring study results will be publicly available 
upon completion of the study. In addition, EPA will publish the 
emissions estimating methodologies based on these results within 18 
months of the study's conclusion. Thus, such information will be widely 
available to the public. Further details on the air monitoring study 
are available at http://www.epa.gov/oecaagct/airmonitoringstudy.html.

III. Summary of This Action

A. What Is the Scope of This Final Rule?

    The scope of this rule is limited to releases of hazardous 
substances to the air from animal waste at farms. Specifically, the 
Agency is issuing an administrative reporting exemption from the CERCLA 
section 103 notification requirements to the NRC (Federal government) 
as implemented in 40 CFR 302.6 and a limited administrative reporting 
exemption from the EPCRA section 304 notification requirements as 
implemented in 40 CFR Part 355, Subpart C--Emergency Notification 
Requirement. (See Section III.B.ii. for the thresholds that limit the 
administrative reporting exemption for EPCRA section 304.) The scope of 
this rule is intended to include all hazardous substances that may be 
emitted to the air from animal waste at farms that would otherwise be 
reportable under those sections. The Agency is not, in this rule, 
defining facility, normal application of fertilizer, or routine 
agricultural operations.

B. How Does This Rule Differ From the Proposed Rule?

    On December 28, 2007, the Agency proposed an administrative 
reporting exemption from the CERCLA section 103 notification 
requirements and the EPCRA section 304 emergency notification 
requirements for air releases of hazardous substances that meet or 
exceed their RQ from animal waste at all farms. The public comment 
period lasted 90 days and closed on March 27, 2008. Through the public 
comment process, the Agency received approximately 12,900 comments. A 
substantial number of those comments (about 11,600) came in the form of 
15 mass mail campaigns that either supported or opposed the proposed 
rule. We also received many comments from people who appear to have 
misunderstood the proposed rule, or assumed that the proposed rule was 
a response to the poultry petition. Our response to significant 
comments are generally addressed below in Section III.G of this 
preamble, with all comments addressed in a response to comment 
document, which is in the

[[Page 76952]]

docket (EPA-HQ-SFUND-2007-0469) to this final rule.\2\
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    \2\ The docket for EPA-HQ-SFUND-2007-0469 can be accessed 
through www.regulations.gov.
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i. Exemption From CERCLA Section 103 Reporting
    This rule finalizes the administrative reporting exemption from the 
CERCLA section 103 notification requirements as proposed, but limits 
the administrative reporting exemption to EPCRA section 304 emergency 
notification requirements by adding a size threshold. That is, at or 
above the threshold adopted in this final rule, farms that generate 
animal waste that release hazardous substances to the air at or above 
the RQ must still report under EPCRA section 304, using the existing 
notification procedures, including the use of continuous release 
reporting. EPCRA section 304 notification requirements apply only to 
releases that have the potential for off-site exposure.
    The Agency is finalizing the administrative reporting exemption 
from the CERCLA section 103 notification requirements because EPA 
continues to believe that Federal on-scene coordinators are unlikely to 
respond to notifications of air releases of hazardous substances from 
animal waste at farms.
    The Agency also believes that State or local emergency response 
authorities are unlikely to respond to notifications of air releases of 
hazardous substances from animal waste at farms. However, the Agency 
did receive comments from the public, as well as from environmental 
groups, a coalition of family farmers and others expressing the desire 
for information regarding emissions of hazardous substances to the air 
from large animal feeding operations. Accordingly, EPA decided to 
bifurcate the administrative reporting exemption for EPCRA section 304 
so as to retain certain emergency notifications for large CAFOs. In 
addition, we sought comment on possible alternative definitions for 
farm, indicating EPA might take factors such as size into account. 
Although not specifically addressing the definition of a farm, we did 
receive many comments asserting that very large farms are no different 
than other industrial sources and should be regulated as such. We 
believe that our threshold approach addresses those concerns.
ii. Thresholds for Exemption From EPCRA Section 304 Reporting
    A farm is above the threshold if it stables or confines \3\ animals 
in numbers equal to or more than the numbers of animals specified for 
each category given in the NPDES program regulations for large CAFOs. 
These thresholds are discussed further in section III.E. below.
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    \3\ Animals that reside primarily outside of an enclosed 
structure (i.e., a barn or a feed lot) and graze on pastures are not 
stabled or confined. Animals that are not stabled or confined at 
concentrated animal feeding operations are not counted toward the 
threshold. Any emissions to the air of hazardous substances from the 
waste of such animals while they are not stabled or confined are not 
counted towards the calculation of a reportable quantity at a farm 
that is above the threshold and subject to reporting, unless such 
waste is consolidated into a storage unit.
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    (1) 700 mature dairy cows, whether milked or dry.
    (2) 1,000 veal calves.
    (3) 1,000 cattle other than mature dairy cows or veal calves. 
Cattle includes but is not limited to heifers, steers, bulls and cow/
calf pairs.
    (4) 2,500 swine each weighing 55 pounds or more.
    (5) 10,000 swine each weighing less than 55 pounds.
    (6) 500 horses.
    (7) 10,000 sheep or lambs.
    (8) 55,000 turkeys.
    (9) 30,000 laying hens or broilers, if the farm uses a liquid 
manure handling system.
    (10) 125,000 chickens (other than laying hens), if the farm uses 
other than liquid manure handling system.
    (11) 82,000 laying hens, if the farm uses other than a liquid 
manure handling system.
    (12) 30,000 ducks (if the farm uses other than a liquid manure 
handling system).
    (13) 5,000 ducks (if the farm uses a liquid manure handling 
system).
iii. Continuous Release Reporting
    Continuous release reporting is available for those farms that are 
at or above the threshold described above in section II.B.ii. In 
general, the Agency believes that emissions from animal waste into the 
air are usually continuous and stable in quantity and rate to qualify 
as continuous releases pursuant to 40 CFR 302.8. The regulations 
implementing EPCRA section 304 are found in 40 CFR Part 355, Subpart 
C--Emergency Release Notification and describe the information required 
for the EPCRA emergency notifications. At the present time, EPA has not 
adopted conversion factors from which to derive quantities of common 
hazardous substances from numbers of particular species of farm 
animals. One purpose of the air monitoring study is to develop 
estimating methodologies. In the meantime, when reports are submitted 
pursuant to EPCRA section 304 for animal waste from farms, the Agency 
expects reports to reflect good faith estimates from reporting 
entities. In addition, EPA intends to issue guidance to assist those 
farms that are required to submit reports under EPCRA section 304 with 
continuous release reporting, as provided in 40 CFR 355, Subpart C--
Emergency Release Notification.

C. Definitions

    The Agency believes it is important to provide clarity with respect 
to the scope of the reporting exemption. Therefore, the Agency is 
providing definitions for animal waste and farm that only pertain to 
regulations promulgated pursuant to CERCLA section 103 and EPCRA 
section 304, specifically 40 CFR 302.3. and 40 CFR 355.61. These 
definitions are not promulgated to apply for any other purpose.
i. Animal Waste
    Animal Waste--means manure (feces, urine, and other excrement 
produced by livestock), digestive emissions, and urea. The definition 
includes animal waste when mixed or commingled with bedding, compost, 
feed, soil, and other materials typically found with animal waste.
    We sought comment on our proposed definition for animal waste, and 
whether an alternative definition may be more appropriate. A few 
commenters asked that we clarify that compost includes composted manure 
and manure-based compost. EPA agrees that the definition of animal 
waste does include such compost and to lend further clarity to the 
definition, we made a slight change. Other comments on our proposed 
definition for animal waste, along with our responses are addressed 
below in section III.G.v.1 of this preamble and in the response to 
comment document available in the docket (EPA-HQ-SFUND-2007-0469) to 
this rule.
ii. Farm
    The Agency is limiting the reporting exemption to animal waste that 
is generated on farms, and is using a specific definition for farm for 
this administrative reporting exemption. For the purpose of this 
administrative reporting exemption only, EPA defines farm by using the 
same definition as that found in the National Agricultural Statistics 
Service (NASS) Census of Agriculture, and adopting it.
    Farm--means a facility on a tract of land devoted to the production 
of crops or raising of animals, including fish, which produced and 
sold, or normally would have produced and sold, $1,000 or more of 
agricultural products during a year.

[[Page 76953]]

    We sought comment on our proposed definition for a farm, and 
whether an alternative definition may be more appropriate. Based on the 
comments received, we concluded that the proposed definition for farm 
was not consistent with other Agency uses for the term; that is, we 
realized that the definition proposed had deviated from the NASS 
definition, as well as the definition used by the Agency in its Spill 
Prevention, Control and Countermeasure (SPCC) rule. As a result, the 
definition for this rule has now been modified. Other comments on our 
proposed definition for farm, along with our responses are addressed 
below in section III.G.v.2 of this preamble and in the response to 
comment document available in the docket (EPA-HQ-SFUND-2007-0469) to 
this rule.

D. What Is Not Included Within the Scope of This Rule?

    As noted previously, the administrative reporting exemption from 
the CERCLA section 103 notification requirements is limited in scope to 
those releases of hazardous substances to the air that meet or exceed 
their RQ from animal waste at farms and in the case of Section 304 of 
EPCRA, only those releases of hazardous substances to the air from 
animal waste at farms that are below the thresholds in 40 CFR 355.31(g) 
are exempt. EPA is not exempting from the CERCLA section 103 or EPCRA 
section 304 notification requirements releases of hazardous substances 
from animal waste that meet or exceed the RQ to any other environmental 
media or at any other facilities other than farms (i.e., meat 
processing plants, slaughter houses, tanneries). Thus, notifications 
must still be submitted if, for example, there was a release of any 
hazardous substances that meet or exceed the RQ from animal waste into 
water (e.g., a lagoon burst) or if there was a release of any hazardous 
substances that meets or exceeds the RQ from animal waste into the air 
or water at a slaughter house or meat processing plant. Likewise, EPA 
is not exempting from the CERCLA section 103 or EPCRA section 304 
notification requirements any release of hazardous substances to the 
air that meets or exceeds the RQ from any source other than animal 
waste at farms. Thus, for example, EPA is not proposing to exempt 
ammonia releases from ammonia storage tanks at farms.
    The Agency believes that in these situations, the release of 
hazardous substances that meets or exceeds the RQ should continue to be 
reported because it is less clear that they will not result in a 
response action from Federal, State or local governments. That is, such 
notifications would alert the government to a situation that could pose 
serious environmental consequences if not immediately addressed.
    Finally, it should be noted that no CERCLA or EPCRA statutory 
requirements, other than the emergency hazardous substance notification 
requirements under CERCLA section 103 and EPCRA section 304, are 
included within this rule. The rule also does not limit the Agency's 
authority under CERCLA sections 104 (response authorities), 106 
(abatement actions), 107 (liability), or any other provisions of CERCLA 
and EPCRA to address releases of hazardous substances from animal waste 
at farms.

E. What Is EPA's Rationale for This Administrative Reporting Exemption?

    EPA's rationale for this administrative reporting exemption is 
based on the purpose of notifying the NRC, and SERCs and LEPCs when a 
hazardous substance is released, and then the likelihood that a 
response to that notification would be taken by any government agency.
    Upon receipt of a notification from the NRC, EPA determines whether 
a response is appropriate. See 40 CFR 300.130(c). If it is determined 
that a response is appropriate, the NCP regulations describe the roles 
and responsibilities for responding to the release. Thus, EPA 
considered whether the Agency would ever take a response action, as a 
result of such notification, for releases of hazardous substances to 
the air that meet or exceed their RQ from animal waste at farms. Based 
on our experience, the Agency believes that Federal on-scene 
coordinators are unlikely to respond to such notifications. 
Specifically, to date, EPA has not initiated a response to any NRC 
notifications of ammonia, hydrogen sulfide, or any other hazardous 
substances released to the air where animal waste at farms is the 
source of that release. Moreover, we can not foresee a situation where 
the Agency would initiate a response action as a result of such 
notification. Under this rule, however, EPA retains its authority to 
respond to citizen complaints or requests for assistance from State or 
local government agencies to investigate releases of hazardous 
substances from animal waste at farms and respond if appropriate. 
Furthermore, the Agency does not need to receive such notifications in 
order to enforce applicable Clean Water Act (CWA), Clean Air Act (CAA), 
Resource Conservation and Recover Act (RCRA), and/or other applicable 
CERCLA and EPCRA regulations at farms. EPA retains the enforcement 
authority to address threats to human health and the environment.
    Several States and localities also indicated that such response 
actions are unlikely to be taken as a result of a notification of 
releases of hazardous substances from animal waste at farms. 
Specifically, EPA received 13 comment letters from State and/or local 
emergency response agencies in response to our proposed rule, as well 
as comments from 10 state agricultural departments that agreed with the 
proposal to not require such notifications.\4\ These commenters all 
affirmed EPA's belief that a response to a notification of air 
emissions of hazardous substances from animal wastes is highly 
unlikely. In fact, while we also received comment letters from 
government officials and others, including environmental groups, that 
the proposed rule is not appropriate due to potential harmful effects 
of air pollution emanating from animal feeding operations, we received 
no comments from any government official suggesting a response action 
should or would be taken.
---------------------------------------------------------------------------

    \4\ The Agency also received 23 comment letters from State and/
or local emergency response agencies in response to the December 
2005 Federal Register notice that acknowledged receipt of the 
rulemaking petition from the National Chicken Council, the National 
Turkey Federation, and the U.S. Poultry and Egg Association which 
also agreed that such notifications were not necessary.
---------------------------------------------------------------------------

    The Agency did receive comments expressing a concern that air 
emissions of hazardous substances from animal waste at the largest 
animal feeding operations may pose a risk and therefore State and local 
governments and the public should continue to receive reports of such 
emissions. CERCLA and EPCRA do not require release reports under 
section 103 of CERCLA and 304 of EPCRA, respectively, to be made 
publicly available. However, section 324 of EPCRA does require the LEPC 
and the SERC to make publicly available each follow-up emergency notice 
provided under section 304(c).
    Based on these comments, the Agency has bifurcated the final rule 
and is promulgating an administrative reporting exemption in order to 
maintain the EPCRA section 304 reporting requirements for the largest 
farms, that is, those farms that meet or exceed the thresholds 
described in section III.B.ii, above. For this rule, the threshold that 
will trigger reporting requirements is the same as the numbers of 
animals specified in the categories regulated by the NPDES program for

[[Page 76954]]

large CAFOs. Comments regarding the elimination of the reporting 
requirements are discussed below in section III.G.i.

F. What Are the Economic Impacts of This Administrative Reporting 
Exemption?

    This administrative reporting exemption will reduce the costs to 
farms that release hazardous substances to the air that meet or exceed 
their RQ from animal waste. Entities that are expected to experience a 
reduction in burden and cost include both the farms that are no longer 
required to report those releases, as well as the Federal government. 
The economic analysis completed for this rule is available in the 
docket for this rulemaking and is based on the underlying economic 
analyses that were completed for the regulations that established the 
notification requirements. We estimate that this final rule will reduce 
burden on farms associated with making notifications under CERCLA 
section 103 and EPRCRA section 304 by approximately 1,290,000 hours 
over the ten-year period beginning in 2009 and associated costs by 
approximately $60,800,000 over the same period. We estimate that this 
rule will also reduce burden on government (including Federal, State 
and local governments) for receipt and processing of the notifications 
under CERCLA section 103 and EPCRA section 304 by approximately 161,000 
hours over the ten-year period beginning in 2009 and associated costs 
by approximately $8,110,000 over the same period. In evaluating the 
potential burden and cost savings to those farms that would no longer 
be required to make notifications under CERCLA section 103 and EPCRA 
section 304 and for the government entities that are no longer required 
to receive and process such notifications, we used the same universe as 
used in the 2008 CAFO Rule (see 73 FR 70417, Nov. 20, 2008).

G. Response to Comments

    The Agency received comments on: (1) The elimination of the 
reporting requirement; (2) the risk, harm, and exposure related to air 
emissions from animal waste at farms; and (3) the Agency's statutory 
authority to issue this rulemaking. Some comments also indicated a 
misunderstanding of the proposed rule. Lastly, the Agency sought 
specific comments in four areas. Those were: (1) Definitions (animal 
waste and farm); (2) whether it is appropriate to expand the reporting 
exemption to other facilities where animal waste is generated (i.e., 
zoos and circuses); (3) whether there might be a situation where a 
response would be triggered by such a notification of the release of 
hazardous substances to the air from animal waste at farms; and (4) if 
so, what an appropriate response would be. The following is our 
response to those substantive comments received. Comments not addressed 
in this preamble are addressed in the response to comment document that 
can be found in the Agency's docket for this rule (EPA-HQ-SFUND-2007-
0469).
i. Comments Regarding Elimination of Reporting Requirement
    We received mixed comments on whether it is appropriate for the 
Agency to eliminate the notification requirements under CERCLA section 
103 and EPCRA section 304 for hazardous substances released to the air 
at farms where the source of those hazardous substances is animal 
waste.
    Many commenters expressed general support for the proposed 
elimination of the reporting requirements under CERCLA section 103 and 
EPCRA section 304. Many of these commenters, including some local 
emergency response agencies, stated that reporting emissions of 
hazardous substances to the air that meet or exceed their RQ from 
animal waste is of little value as it is common knowledge that 
agricultural operations release ammonia on an ongoing basis and receipt 
of such notifications could prove to be a hindrance in performing their 
mission by overwhelming the system with notifications that will not be 
responded to. Many commenters supporting the elimination of the 
reporting requirements, particularly commenters representing the 
agricultural community, also stated that emissions reporting is costly 
and could put them out of business should they have to adhere to such a 
regulation. Moreover, these same commenters defended the proposal by 
pointing out that information about the location and emissions of CAFOs 
is already publicly available. For example, one could readily determine 
the number of laying hens there are in a particular county through 
county specific data published by the U.S. Department of Agriculture's 
(USDA's) National Agricultural Statistical Service. According to these 
commenters, CERCLA/EPCRA reporting does not add in any meaningful way 
to this knowledge base.
    On the other hand, the Agency received many comments that were 
opposed to the elimination of the notification requirements under 
CERCLA section 103 and EPCRA section 304. Many commenters opposed the 
proposed elimination of these reporting requirements on the grounds 
that reports provide good documentation, even if the content is not 
reviewed and no response is appropriate. Several commenters stated that 
reporting information about emissions enables citizens to hold 
companies and local governments accountable in terms of how toxic 
chemicals are managed and even allows agencies to identify a facility's 
proximity to schools where children may be at higher risk of adverse 
health effects due to exposure.
    In addition, many commenters asserted that the proposed rule 
interferes with the public's right to know about large releases of 
toxic chemicals. Others stated that factory farms should not be 
protected from the laws that affect all other industries. Several 
commenters asserted that CAFOs are not family farms, arguing that they 
are industries that produce high amounts of pollutants and should be 
treated as such.
    Finally, a commenter suggested that farms should be exempt from the 
monitoring and reporting of pollutant releases until measuring and 
testing procedures become more accurate and that the exemptions should 
apply until there are more feasible monitoring practices enacted. The 
commenter argued that it was unfair to require such reporting when the 
science surrounding ammonia releases is uncertain.
    The Agency appreciates the perspectives of both sides of the 
reporting issue. We understand that the regulated community and some 
SERCs and LEPCs believe that, in general, the release reports are 
unnecessary, burdensome, and would not likely result in ``new'' 
information regarding emissions from farms. The Agency agrees. However, 
many commenters also argued that reporting, especially for large CAFOs, 
is important. Therefore, we have adopted a final rule that seeks to 
address both concerns. As such, farms would be exempt from reporting 
under CERCLA section 103 for the reporting of air releases of hazardous 
substances from animal waste to the NRC; but, at the same time, those 
farms that exceed the threshold established in 40 CFR 355.31(g), and 
described above in section III.B.ii of this preamble, will still be 
required to notify the community emergency coordinator for the LEPC for 
any area likely to be affected by the release and to the SERC of any 
State likely to be affected by the release under EPCRA section 304(b). 
We believe the threshold is appropriate to continue to make available 
information regarding large CAFOs sought by commenters. In accordance 
with 40 CFR 355.31(h), farms that have animals that

[[Page 76955]]

are not stabled or confined are also exempt from reporting under EPCRA 
section 304. For the purposes of this rule, EPA considers animals 
(i.e., cattle) that reside primarily outside of an enclosed structure 
(i.e., a barn) and graze on pastures not to be stabled or confined.
    In addition, after completion of the Air Monitoring Study and the 
development and publication of emission estimating methodologies, the 
Agency intends to review the results and consider if the threshold for 
the EPCRA exemption is appropriate.
ii. Comments Regarding Risk, Harm, and Exposure
    EPA's rationale for the proposed rule is based on the purpose of 
notifying the NRC, and SERCs and LEPCs when a hazardous substance is 
released, and then the likelihood that a response to that release would 
be taken by any government agency. The comments that cited risk, harm, 
and exposure were used to either support or oppose the proposed rule.
    In supporting the proposed rule, many commenters provided general 
statements to the effect that emissions from CAFOs pose no threat to 
public health or the environment. Many other commenters also argued 
that there is no evidence or studies that emissions pose any public 
health risks or have environmental impacts that would warrant emergency 
release reports from farms to the Federal level.
    In opposing the proposed rule, a number of commenters submitted 
studies to support their conclusion that emissions from some farms pose 
levels of risk, harm, and exposure that should be taken into 
consideration by the Agency. Several commenters specifically cited a 
2002 study entitled, ``Iowa Concentrated Animal Feeding Operations Air 
Quality Study,'' conducted by Iowa State University and the University 
of Iowa Study Group.\5\
---------------------------------------------------------------------------

    \5\ This study is available in the Superfund Docket at: EPA-HQ-
SFUND-2007-0469-0531.8.
---------------------------------------------------------------------------

    Several commenters suggested delaying any decisions on finalizing 
the proposal until the Agency's air monitoring study is complete. These 
commenters argued that EPA may find that these airborne contaminants 
are more dangerous to human health than thought. Many of the commenters 
who opposed the proposed rule also provided information pertaining to 
the health impacts associated with CAFOs. Some provided anecdotal 
evidence, while others cited published literature drawing a causal 
link. Additional information regarding the anecdotal evidence and 
published literature is provided in the response to comment document 
available in the docket (HQ-EPA-SFUND-2007-0469) to this rule. Finally, 
a number of commenters suggested that the adverse health effects that 
have been demonstrated should be sufficient to continue to mandate 
CERCLA and EPCRA reporting of ``toxic air emissions'' and step up 
enforcement, as well.
    EPA appreciates the information provided by commenters, especially 
those who submitted study information indicating the potential health 
issues associated with the emissions from animal waste at farms. We 
would first note that a number of the studies or information provided 
addressed risk or health issues for workers on the farm; reporting 
under section 304 of EPCRA addresses releases that are off-site of the 
facility. In addition, as we noted previously, EPA is currently 
overseeing a comprehensive study of CAFO air emissions (air monitoring 
study) that is being conducted by an independent, non-profit 
organization. The purpose of the air monitoring study is to develop 
emissions estimating methodologies for all animal agricultural 
operations. Over 2,600 agreements, representing over 14,000 farms, 
signed up for the study. The monitoring study, which began in the 
spring of 2007, includes 25 representative sites (lagoons or barns) on 
21 different farms in ten states (NC, NY, IA, WI, CA, KY, TX, WA, IN, 
and OK). The sites will be monitored for a period of two years, 
allowing the Agency to account for emissions variability by season, and 
for the effect of any seasonal operational changes (such as pumping out 
lagoons), that could have an effect on emission levels. At the 
conclusion of the air monitoring study, EPA will use the data along 
with any other relevant, available data to develop emissions estimating 
methodologies. The air monitoring study results will be publicly 
available upon completion of the study. In addition, EPA will publish 
the emissions estimating methodologies based on these results, within 
18 months of the study's conclusion. The notification requirements 
under CERCLA section 103 would not provide the type of data required in 
order to draw the same conclusions that the more comprehensive air 
monitoring study can provide. This rule does not address how air 
emissions from CAFOs should be controlled.
    As we have discussed, EPA believes that a response to a 
notification about an air release of a hazardous substance from animal 
waste at a farm is unlikely and impracticable. We are therefore 
exempting those notifications from CERCLA section 103 notification 
requirements and to a limited extent EPCRA section 304 emergency 
notification requirements. As discussed above, EPA does recognize that 
the public may have a separate use for the notifications, and 
therefore, the reporting exemption under Section 304 of EPCRA is 
limited to farms that fall below the threshold discussed in III.B.ii. 
Moreover, EPA is not limiting any of its response authorities in this 
rule (should a State or local agency request assistance), nor are we 
limiting any of our other authorities under CERCLA and EPCRA.
iii. Comments Regarding the Agency's Statutory Authority To Issue This 
Rulemaking
    A number of commenters challenged EPA's legal authority to grant 
these exemptions by stating that CERCLA and EPCRA do not give EPA the 
authority to grant reporting exemptions. Another commenter argues that 
EPA may not rest its basis for the exemption solely on evidence that a 
Federal response to animal waste releases is unlikely.
    EPA disagrees with the commenters that challenge our authority to 
provide administrative reporting exemptions. First, we would note that 
EPA has on two other occasions exercised its authority to extend 
administrative reporting exemptions to certain well-defined release 
scenarios. Specifically, on March 19, 1998, the Agency issued a final 
rule (see 63 FR 13459) that granted exemptions for releases of 
naturally occurring radionuclides. The rule entitled, Administrative 
Reporting Exemptions for Certain Radionuclide Releases (``Radionuclide 
ARE''), granted exemptions for releases of hazardous substances that 
pose little or no risk or to which a Federal response is infeasible or 
inappropriate (see 63 FR 13461). Moreover, on October 4, 2006, the 
Agency issued a final rule (see 71 FR 58525) that broadened the 
existing reporting exemptions to include releases of less than 1,000 
pounds of nitrogen oxide (NO) and less than 1,000 pounds of nitrogen 
dioxide (NO2) to the air in 24 hours (``NOX 
ARE'') that are the result of combustion. The NO and NO2 
exemptions were granted for releases of hazardous substances at levels 
for which the CAA regulates nitrogen oxides that are considerably 
higher than ten pounds.
    EPA also disagrees that it is barred from basing its exemption on 
evidence that a Federal response to a notification of a release of 
hazardous substances to the air from animal waste releases is unlikely. 
Rather, for this rule, EPA has

[[Page 76956]]

made a determination that these reports are unnecessary because, in 
most cases, a federal response is impractical and unlikely (i.e., we 
would not respond to them since there is no reasonable approach for the 
response). We also believe that because this administrative reporting 
exemption is narrowly focused to the source (animal waste) and location 
(at farms) of the hazardous substance emissions, it is appropriate to 
base our rationale for this rule on the unlikelihood and 
inappropriateness of a response.
iv. Comments Indicating a Misunderstanding of the Proposed Rule
    A number of the commenters seem to misunderstand what the Agency 
was proposing. For example, commenters expressed general opposition to 
removing air quality and clean air standards; removing clean air 
protections; reducing pollution or emission standards; exemptions to 
clean air standards; allowing farms to emit more pollutants; 
deregulation of hazardous emissions; and an exemption from the CAA and 
CWA. This rule would do none of this. Rather, this rule addresses only 
the notification requirements under CERCLA section 103 and in a limited 
manner, EPCRA section 304. EPA retains all other authorities under both 
CERCLA and EPCRA, and the CAA and CWA standards also are unaffected by 
this action.
v. Comments Regarding Definitions
    In order to provide clarity with respect to the scope of the 
proposed reporting exemption, the Agency proposed definitions for 
animal waste and farm. The definitions, as proposed, would be limited 
in application to the regulations promulgated pursuant to CERCLA 
section 103 specifically 40 CFR 302.3 and 40 CFR 355.61. We solicited 
comment on those definitions.
(1) Animal Waste
    Because the Agency does not have an existing definition for animal 
waste, EPA proposed to add a definition for animal waste to the Code of 
Federal Regulations. The definition for animal waste in the proposed 
rule was, ``manure (feces, urine, other excrement, and bedding, 
produced by livestock that has not been composted), digestive 
emissions, and urea. The definition includes animal waste when mixed or 
commingled with bedding, compost, feed, soil and other materials 
typically found with animal waste.'' We sought comment from the public 
on the appropriateness, clarity and completeness of the definition.
    In general, the public was generally supportive of our proposed 
definition of animal waste, as long as it is understood that this 
definition is used solely for the purposes of CERCLA and EPCRA 
reporting; however, there were a few requests for further 
clarification. In particular, several commenters requested 
clarification regarding the treatment of compost material, and 
specifically whether composted manure is included in the definition of 
animal waste. Similarly, other commenters suggested that EPA clarify 
that manure-based compost is included in the definition of animal 
waste. We have clarified in the discussion in section III.C.i., above, 
that such composted manure and manure-based compost is included in the 
definition of animal waste. Furthermore, we made a small change to the 
definition of animal waste to help clarify this point.
    Several other commenters submitted alternative definitions. For 
example, to reflect the need for controlling emissions of dangerous and 
toxic emissions, a commenter suggested that animal waste be defined as 
``manure (livestock produced feces, urine, other excrement, and bedding 
that has not been composted), digestive emissions, and urea, which emit 
dangerous and/or toxic gases in any quantity. This definition includes 
animal waste when mixed or commingled with bedding, compost, feed, soil 
and other materials typically found in animal waste.'' Another 
commenter suggested an alternate definition which would define animal 
waste as ``all constituents and byproducts of the decomposition of 
manure (feces, urine, other excrement, and bedding, produced by 
livestock or poultry that has not been composted), digestive emissions, 
and urea.'' This suggested definition would also include ``animal waste 
when mixed or commingled with water, bedding, compost, feed, soil and 
other materials typically found with animal waste.'' Still another 
commenter suggested the following definition for animal waste, ``manure 
(feces, urine, or other excrement produced by livestock, and including 
bedding), and any other livestock digestive emissions, regardless of 
how stored, handled, composted or otherwise stockpiled. The definition 
includes animal waste used in biogas production or other treatment 
processes, or when mixed or commingled with bedding, compost, feed, 
soil, and other materials typically found with animal waste.''
    While the Agency appreciates the suggestions provided by the 
commenters, we believe that the proposed definition of animal waste is 
broad enough to serve the purpose of defining the source of hazardous 
substances emitted from farms for this administrative reporting 
exemption, with the one clarification noted above. The definitions 
proposed by the commenters do not offer additional clarity and in the 
case of ``animal waste used in biogas production or other treatment 
processes,'' suggest a broader use of manure that would extend to 
facilities other than farms, and thus, beyond the scope of the final 
rule.
(2) Farm
    EPA proposed a definition for farm by slightly modifying the 
definition found in the National Agricultural Statistics Service (NASS) 
Census of Agriculture, as well as included Federal and State research 
farms that utilize farm animals subject to the conditions experienced 
on other farms (e.g., poultry, swine, dairy, and livestock research 
farms). However, in the proposal, we incorrectly stated that the 
proposed definition was used by USDA. Thus, the proposed definition for 
farm was ``(a) any place whose operation is agricultural and from which 
$1,000 or more of agricultural products were produced and sold, or 
normally would have been sold, during the census year. Operations 
receiving $1,000 or more in Federal government payments are counted as 
farms, even if they have no sales and otherwise lack the potential to 
have $1,000 or more in sales; or, (b) a Federal or state poultry, 
swine, dairy or livestock research farm.'' The purpose of specifying 
that Federal and State research farms that utilize farm animals subject 
to the conditions experienced on other farms was to respond to concerns 
that Federal and State research farms were included in the exemption. 
The Agency sought comment on the proposed definition, and whether an 
alternative definition may be more appropriate.
    Commenters generally expressed support for the definition of farm 
because they understood it to be the definition used by USDA and 
because it promotes consistency in definitions between agencies; 
however, one commenter pointed out that the proposed definition is 
inconsistent with the definition of farm used by EPA in its SPCC rule 
(see 71 FR 77266, December 26, 2006) and therefore the Agency has two 
differing definitions that could place a hardship on the regulated 
community and gives the impression that the Agency is picking and 
choosing definitions without considering the regulatory implications of 
its decisions. The Agency agrees with this commenter and thus, EPA has 
decided to use for this rule the same

[[Page 76957]]

definition of farm as the definition used in the SPCC rule. This 
definition is also now the same definition found in the NASS Census of 
Agriculture. Although not specifically stated in the definition, this 
definition is broad and includes Federal or State poultry, swine, dairy 
or livestock research farms that were included in the proposed 
definition.
    Another definition suggested by a commenter was to expand the 
definition to include ``[any] operation that produces eggs, poultry, 
swine, dairy, or other livestock in any amount,'' as well as all 
production areas and land application areas. Another commenter 
suggested that the definition be expanded to include non-Federal or 
State research facilities. EPA disagrees with the commenters that 
suggested an expanded definition of farm. We believe that the 
definition in this rule encompasses the universe of operations that the 
commenters are suggesting without adding confusion to the regulated 
facilities, especially in light of the SPCC regulations.
vi. Comments Regarding Other Facilities
    The Agency is aware that animal waste is also generated at other 
facilities, such as zoos and circuses. Because the focus of the 
proposal was on animal waste generated or found at farms, EPA did not 
propose to expand the reporting exemption beyond such facilities. 
However, because the potential for release to the air of hazardous 
substances from animal waste at other such facilities may present the 
same issues that are presented by animal waste at farms, we did 
specifically request comment on whether the administrative reporting 
exemption should be expanded to include other types of facilities that 
also generate animal waste, and if so, what other types of facilities 
should be included in the reporting exemption.
    There was general support by the commenters for including within 
the exemption other types of facilities (besides farms) that produce 
animal waste. That is, while commenters generally agreed that the rule 
should stay narrowly focused, they also argued that other types of 
facilities that produce animal waste should also be included within the 
exemption. Several other commenters stated that because the generation 
of animal waste is a normal biological process, all animals' waste 
should be administratively excluded from reporting.
    EPA appreciates the commenters' arguments that all animals' waste 
should be excluded; however, we have decided to limit the final rule to 
animal waste generated or produced at farms, and not include other 
types of facilities, because the Agency has not looked sufficiently at 
these other types of facilities to determine the likelihood that the 
Agency would take a response action, if there was such a release to the 
air of hazardous substances that meet or exceed their RQ from animal 
waste.
vii. Comments Regarding Possible Situations That Would Necessitate a 
Response
    EPA specifically sought comment on whether there might be a 
situation where a response would be triggered by such a notification of 
the release of hazardous substances to the air that meet or exceeds the 
RQ from animal waste at farms, and if so, what an appropriate response 
would be to such notifications. Several commenters responded that there 
are no circumstances where a manure-related release of emissions would 
trigger an emergency response.
    On the other hand, there were some commenters that offered 
scenarios that described the importance of receiving the notifications. 
Specifically, one commenter noted that extreme weather fluctuations and 
various pit pumping techniques may cause emissions to exceed reportable 
quantities. Such fluctuations (e.g., differences in temperature, 
rainfall frequency and intensity, wind speed, topography and soils) 
could impact the amount of air emissions released from farms. Another 
commenter cited a 2004 study entitled, Concentrated Animal Feeding 
Operations: Health Risks from Air Pollution Institute for Agriculture 
and Trade Policy,\6\ which noted that ``when pits are agitated for 
pumping, some or all of these gases are rapidly released from the 
manure and may reach toxic levels or displace oxygen, increasing the 
risk to humans and livestock.''
---------------------------------------------------------------------------

    \6\ This document is available on line at: http://www.healthobservatory.org/library.cfm?refID=37388.
---------------------------------------------------------------------------

    With respect to responses, one commenter stated that responses may 
be needed to protect children who live in nearby homes and communities 
from elevated levels of airborne ammonia and/or the fine particulates 
that result from the ammonia releases. The commenter suggests that 
adequate monitoring will provide facility operators with sufficient 
warning to take remedial actions that will reduce ammonia formation and 
release before regulatory thresholds are exceeded.
    Finally, one commenter stated that EPA has not examined such 
situations that may arise when maintaining feeding operations and that 
the Agency has not proven that emergency personnel would not benefit 
from continuous release reports of hazardous substances from these 
operations when attempting to save lives or prevent injury quickly in 
the future.
    From a CERCLA section 104 response perspective, based on EPA's 
experience, the Agency would rarely respond to such scenarios. In any 
event, we retain our response authorities and would assist State and 
local officials in their response, if requested. State or local 
agencies (i.e., SERCs and LEPCs) also may require information for 
emergency planning purposes under section 303(d) of EPCRA and make this 
information available to the public under section 324 of EPCRA.

IV. Statutory and Regulatory Reviews

A. Executive Order 12866 (Regulatory Planning and Review)

    Under Executive Order (EO) 12866 (58 FR 51735, October 4, 1993), 
this action is a ``significant regulatory action'' because it has been 
determined that it raises novel legal or policy issues arising out of 
legal mandates, the President's priorities, or the principles set forth 
in the Executive Order. Accordingly, EPA submitted this action to the 
Office of Management and Budget (OMB) for review under EO 12866 and any 
changes made in response to OMB recommendations have been documented in 
the docket for this action.

B. Paperwork Reduction Act

    This action does not impose any new information collection burden. 
Rather, this final rule represents a reduction in burden for both 
industry and the government by administratively exempting the reporting 
requirement for releases of hazardous substances to the air that meet 
or exceed their RQ from animal waste at farms from the CERCLA section 
103 notification requirements and to a limited extent, the EPCRA 
section 304 emergency notification requirements.
    However, the Office of Management and Budget (OMB) has previously 
approved the information collection requirements contained in the 
existing regulation 40 CFR 302 under the provisions of the Paperwork 
Reduction Act, 44 U.S.C. 3501 et seq. and has assigned OMB control 
number 2050-0046, EPA ICR number 1049.11 for 40 CFR 302.6 (Episodic 
releases of oil and hazardous substances), OMB control number 2050-
0086, EPA ICR number 1445.07 for 40 CFR 302.8 (Continuous release 
reporting requirements) (pending approval) and OMB control

[[Page 76958]]

number 2050-0092, EPA ICR number 1395.06 for 40 CFR 355 (Emergency 
planning and notification). The OMB control numbers for EPA's 
regulations in 40 CFR are listed in 40 CFR part 9.
    We estimate that this final rule will reduce burden on farms 
associated with the notification requirements under CERCLA section 103 
and EPCRA section 304 by approximately 1,290,000 hours over the ten 
year period beginning in 2009 and associated costs by approximately 
$60,800,000 over the same period. We estimate that this rule will also 
reduce burden on government (including Federal, State and local 
governments) for receipt and processing of the notifications under 
CERCLA section 103 and EPCRA section 304 by approximately 161,000 hours 
over the ten year period beginning in 2009 and associated costs by 
approximately $8,110,000 over the same period. In evaluating the 
potential burden and cost savings to those farms that would no longer 
be required to make notifications under CERCLA section 103 and EPCRA 
section 304 and for the government entities that are no longer required 
to receive and process such notifications, we used the same universe as 
used in the 2008 CAFO Rule (see 73 FR 70417, Nov. 20, 2008).

C. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) generally requires an agency 
to prepare a regulatory flexibility analysis of any rule subject to 
notice and comment rulemaking requirements under the Administrative 
Procedure Act or any other statute unless the agency certifies that the 
rule will not have a significant economic impact on a substantial 
number of small entities. Small entities include small businesses, 
small organizations, and small governmental jurisdictions.
    For purposes of assessing the impacts of this rule on small 
entities, small entity is defined as: (1) A small business as defined 
by the Small Business Administration's (SBA) regulations at 13 CFR 
121.201; (2) a small governmental jurisdiction that is a government of 
a city, county, town, school district or special district with a 
population of less than 50,000; and (3) a small organization that is 
any not-for-profit enterprise which is independently owned and operated 
and is not dominant in its field.
    Under the statutory and regulatory analyses of the Regulatory 
Flexibility Act for the proposed rule, we concluded that EPA expects 
the net reporting and recordkeeping burden associated with reporting 
air releases of hazardous substances that meet or exceed their RQ from 
animal waste at farms under CERCLA section 103 and EPCRA section 304 to 
decrease. We stated that this reduction in burden will be realized by 
businesses of all sizes. Although we concluded that the rule will 
relieve regulatory burden for all affected small entities as the 
statute requires, EPA requested comment on the potential impacts of the 
proposed rule on small entities and on issues related to such impacts.
    One commenter explicitly concurred with EPA's analysis and 
conclusion that the proposed rule will provide relief from regulatory 
burden for small entities, stating that: ``Small farms should not be 
affected even if the reporting requirements stay in place because these 
farms do not generally have a large enough herd of animals to reach the 
requisite levels of toxins.'' EPA appreciates the commenter's 
perspective that small farms would probably not be affected by the 
reporting requirements, even if we did not issue this administrative 
reporting exemption.
    After considering the economic impacts of this final rule on small 
entities, I certify that this action will not have a significant 
economic impact on a substantial number of small entities. This final 
rule will not impose any additional requirements on small entities. 
Rather, this rulemaking will relieve regulatory burden because we are 
eliminating the reporting requirement for releases of hazardous 
substances to the air that meet or exceed their RQ from animal waste at 
farms under the CERCLA section 103 notification requirements and for 
those entities below the large CAFO threshold of animal species, as 
defined under the NPDES program regulations, under the EPCRA section 
304 notification requirements. We expect the net reporting and 
recordkeeping burden associated with reporting air releases of 
hazardous substances from animal waste at farms under CERCLA section 
103 and EPCRA section 304 to decrease. This reduction in burden will be 
realized by both small and large businesses. We have therefore 
concluded that this final rule will relieve regulatory burden for all 
affected small entities.

D. Unfunded Mandates Reform Act

    This action contains no Federal mandates under the provisions of 
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), 2 U.S.C. 
1531-1538 for State, local, or tribal governments or the private 
sector.
    This action is also not subject to the requirements of section 203 
of UMRA because it contains no regulatory requirements that might 
significantly or uniquely affect small governments. That is, the final 
rule imposes no enforceable duty on any State, local or tribal 
governments or the private sector; rather, this final rule will result 
in burden reduction in the receipt of notifications under section 103 
of CERCLA and for those entities below the large CAFO threshold of 
animal species, as defined under the NPDES program regulations, under 
section 304 of EPCRA notification requirements of the release to the 
air of hazardous substances, primarily ammonia and hydrogen sulfide, 
that meet or exceed their RQ from animal waste at farms.
    Additionally, EPA has determined that this final rule contains no 
regulatory requirements that might significantly or uniquely affect 
small governments. This final rule reduces regulatory burden and the 
private sector is not expected to incur costs exceeding $100 million. 
Thus, the final rule is not subject to the requirements of Sections 202 
and 205 of UMRA.

E. Executive Order 13132 (Federalism)

    Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August 
10, 1999), requires EPA to develop an accountable process to ensure 
``meaningful and timely input by State and local officials in the 
development of regulatory policies that have federalism implications.'' 
Policies that have federalism implications are defined in the Executive 
Order to include regulations that have ``substantial direct effects on 
the States, on the relationship between the national government and the 
States, or on the distribution of power and responsibilities among the 
various levels of government.''
    This final rule does not have federalism implications. It will not 
have substantial direct effects on the States, on the relationship 
between the national government and the States, or on the distribution 
of power and responsibilities among the various levels of government, 
as specified in Executive Order 13132. There are no State and local 
government bodies that incur direct compliance costs by this final 
rule. Thus, Executive Order 13132 does not apply to this rule.

F. Executive Order 13175 (Consultation and Coordination With Indian 
Tribal Governments)

    This action does not have tribal implications, as specified in 
Executive Order 13175 (65 FR 67249, November 9, 2000). This rule does 
not significantly or uniquely affect the communities of Indian tribal 
governments, nor would it impose substantial direct compliance

[[Page 76959]]

costs on them. Thus, Executive Order 13175 does not apply to this 
action.

G. Executive Order 13045 (Protection of Children From Environmental 
Health & Safety Risks)

    EPA interprets EO 13045 (62 FR 19885, April 23, 1997) as applying 
only to those regulatory actions that concern health or safety risks, 
such that the analysis required under section 5-501 of the EO has the 
potential to influence the regulation. This action is not subject to EO 
13045 because it does not establish an environmental standard intended 
to mitigate health or safety risks.

H. Executive Order 13211 (Actions That Significantly Affect Energy 
Supply, Distribution, or Use)

    This action is not a ``significant energy action'' as defined in 
Executive Order 13211 (66 FR 28355 (May 22, 2001)), because it is not 
likely to have a significant adverse effect on the supply, 
distribution, or use of energy. This final rule will reduce the burden 
associated with the notification of releases to air of hazardous 
substances that meet or exceed their RQ from animal waste at farms.

I. National Technology Transfer Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (``NTTAA''), Public Law 104-113, 12(d) (15 U.S.C. 272 note) 
directs EPA to use voluntary consensus standards in its regulatory 
activities unless to do so would be inconsistent with applicable law or 
otherwise impractical. Voluntary consensus standards are technical 
standards (e.g., materials specifications, test methods, sampling 
procedures, and business practices) that are developed or adopted by 
voluntary consensus standards bodies. NTTAA directs EPA to provide 
Congress, through OMB, explanations when the Agency decides not to use 
available and applicable voluntary consensus standards.
    This action does not involve technical standards. Therefore, EPA 
did not consider the use of any voluntary consensus standards.

J. Executive Order 12898 (Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Populations)

    Executive Order (EO) 12898 (59 FR 7629 (Feb. 16, 1994)) establishes 
Federal executive policy on environmental justice. Its main provision 
directs Federal agencies, to the greatest extent practicable and 
permitted by law, to make environmental justice part of their mission 
by identifying and addressing, as appropriate, disproportionately high 
and adverse human health or environmental effects of their programs, 
policies, and activities on minority populations and low-income 
populations in the United States.
    EPA has determined that this final rule will not have 
disproportionately high and adverse human health or environmental 
effects on minority or low-income populations because it does not 
affect the level of protection provided to human health or the 
environment. As discussed in the Background section of the preamble for 
this final rule, the requirement to notify the government under CERCLA 
section 103 or EPCRA section 304 does not require the notifying entity 
to take any specific action to address the release. Therefore, because 
EPA has determined that a response action would be unlikely, EPA does 
not believe that exempting these releases from CERCLA section 103 
notification requirements or to a limited extent EPCRA section 304 
emergency notification requirements will have a disproportionately high 
and adverse human health or environmental effect on minority or low-
income populations, especially since the Agency is not limiting any of 
its other authorities under CERCLA, such as CERCLA sections 104 
(response authorities), 106 (abatement actions), 107 (liability), or 
any other provisions of CERCLA or EPCRA. The Agency also retains its 
authority to apply existing statutory provisions in its efforts to 
prevent minority and or low-income communities from being subject to 
disproportionately high and adverse impacts and environmental effects. 
We therefore have determined that this final rule does not have 
disproportionately high and adverse human health or environmental 
effects on minority or low-income populations.

K. Congressional Review Act

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. EPA will submit a report containing this rule and other 
required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. A major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
804(2). This rule will be effective January 20, 2009.

List of Subjects

40 CFR Part 302

    Air pollution control, Chemicals, Hazardous substances, Hazardous 
waste, Intergovernmental relations, Natural resources, Reporting and 
recordkeeping requirements, Superfund, Water pollution control, Water 
supply.

40 CFR Part 355

    Air pollution control, Chemicals, Disaster assistance, Hazardous 
substances, Hazardous waste, Intergovernmental relations, Natural 
resources, Penalties, Reporting and recordkeeping requirements, 
Superfund, Water pollution control, Water supply.

    Dated: December 12, 2008.
Stephen L. Johnson,
Administrator.

0
For the reasons set out in the preamble, title 40, chapter I of the 
Code of Federal Regulations is amended as follows:

PART 302--DESIGNATION, REPORTABLE QUANTITIES, AND NOTIFICATION

0
1. The authority citation for part 302 continues to read as follows:

    Authority: 42 U.S.C. 9602, 9603, 9604; 33 U.S.C. 1321 and 1361.


0
2. Section 302.3 is amended by adding in alphabetical order the 
definitions of ``Animal waste'' and ``Farm'' to read as follows:


Sec.  302.3  Definitions.

* * * * *
    Animal Waste means manure (feces, urine, and other excrement 
produced by livestock), digestive emissions, and urea. The definition 
includes animal waste when mixed or commingled with bedding, compost, 
feed, soil and other typical materials found with animal waste.
* * * * *
    Farm means a facility on a tract of land devoted to the production 
of crops or raising of animals, including fish, which produced and 
sold, or normally would have produced and sold, $1,000 or more of 
agricultural products during a year.
* * * * *

0
3. Section 302.6 is amended by adding paragraph (e)(3) to read as 
follows:


Sec.  302.6  Notification requirements.

* * * * *
    (e) * * *

[[Page 76960]]

    (3) Releases to the air of any hazardous substance from animal 
waste at farms.

PART 355--EMERGENCY PLANNING AND NOTIFICATION

0
4. The authority citation for part 355 continues to read as follows:

    Authority: 42 U.S.C. 11002, 11003, 11004, 11045, 11047, 11048 
and 11049.


0
5. Section 355.31 is amended by adding paragraphs (g) and (h) to read 
as follows:


Sec.  355.31  What types of releases are exempt from the emergency 
release notification requirements of this subpart?

* * * * *
    (g) Any release to the air of a hazardous substance from animal 
waste at farms that stable or confine fewer than the numbers of animal 
specified in any of the following categories.
    (1) 700 mature dairy cows, whether milked or dry.
    (2) 1,000 veal calves.
    (3) 1,000 cattle other than mature dairy cows or veal calves. 
Cattle includes but is not limited to heifers, steers, bulls and cow/
calf pairs.
    (4) 2,500 swine each weighing 55 pounds or more.
    (5) 10,000 swine each weighing less than 55 pounds.
    (6) 500 horses.
    (7) 10,000 sheep or lambs.
    (8) 55,000 turkeys.
    (9) 30,000 laying hens or broilers, if the farm uses a liquid 
manure handling system.
    (10) 125,000 chickens (other than laying hens), if the farm uses 
other than liquid manure handling system.
    (11) 82,000 laying hens, if the farm uses other than a liquid 
manure handling system.
    (12) 30,000 ducks (if the farm uses other than a liquid manure 
handling system).
    (13) 5,000 ducks (if the farm uses a liquid manure handling 
system).
    (h) Any release to the air of a hazardous substance from animal 
waste at farms from animals that are not stabled or otherwise confined.

0
6. Section 355.61 is amended by adding in alphabetical order the 
definitions of ``Animal waste'' and ``Farm'' to read as follows:


Sec.  355.61  How are key words in this part defined?

    Animal Waste means manure (feces, urine, and other excrement 
produced by livestock), digestive emissions, and urea. The definition 
includes animal waste when mixed or commingled with bedding, compost, 
feed, soil and other typical materials found with animal waste.
* * * * *
    Farm means a facility on a tract of land devoted to the production 
of crops or raising of animals, including fish, which produced and 
sold, or normally would have produced and sold, $1,000 or more of 
agricultural products during a year.
* * * * *
[FR Doc. E8-30003 Filed 12-17-08; 8:45 am]
BILLING CODE 6560-50-P